Section 439: Offences to be non-cognizable
This section determines which company law offences are non-cognizable and sets out the conditions under which a court can take cognizance of such offences.
The section, clause by clause
What the section says
In plain terms
(1)Notwithstanding anything in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act except the offences referred to in sub-section (6) of section 212 shall be deemed to be non-cognizable within the meaning of the said Code.
Every offence under this Act, except those referred to in sub-section (6) of section 212, is deemed to be non-cognizable within the meaning of the Code of Criminal Procedure, 1973.
(2)No court shall take cognizance of any offence under this Act which is alleged to have been committed by any company or any officer thereof, except on the complaint in writing of the Registrar, a shareholder 2[or a member] of the company, or of a person authorised by the Central Government in that behalf:
A court can only take cognizance of an offence under this Act if there is a written complaint from the Registrar, a shareholder or member of the company, or a person authorised by the Central Government.
provisoProvided that the court may take cognizance of offences relating to issue and transfer of securities and non-payment of dividend, on a complaint in writing, by a person authorised by the Securities and Exchange Board of India:
provisoProvided further that nothing in this sub-section shall apply to a prosecution by a company of any of its officers.
(3)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),where the complainant under sub-section (2) is the Registrar or a person authorised by the Central Government, the presence of such officer before the Court trying the offences shall not be necessary unless the court requires his personal attendance at the trial.
If the complainant is the Registrar or a person authorised by the Central Government, they do not need to be present in court unless the court requires their personal attendance at the trial.
(4)The provisions of sub-section (2) shall not apply to any action taken by the liquidator of a company in respect of any offence alleged to have been committed in respect of any of the matters in Chapter XX or in any other provision of this Act relating to winding up of companies.
The requirement for a written complaint does not apply to actions taken by a liquidator of a company in respect of offences related to winding up of companies.
explanationExplanation.—The liquidator of a company shall not be deemed to be an officer of the company within the meaning of sub-section (2).
The right-hand column is written from the section text, not quoted from it, and it has no legal force. Where the two differ, the left-hand column is the law.
Amendment notes
- 1. Subs. by Act 1 of 2018, s. 87 for “deemed to be a Court of Session” (w.e.f. 7-5-2018).
- 2. Ins. by Act 1 of 2018, s. 88 (w.e.f. 7-5-2018).
- 3. Subs. by s. 89, ibid., for “Court of Session” (w.e.f. 7-5-2018).
- 3. Subs. by s. 90, ibid., for “with fine only”(w.e.f. 9-2-2018).
- 4. Subs. by Act 22 of 2019, s. 39, for “does not exceed five lakh rupees” (w.e.f. 2-11-2018).
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Reproduced from the official India Code print for reference. Check the current text on India Code before you rely on it, and read the section alongside its Rules. Nothing here is legal advice.